GRYGIEL v. MONCHES FISH GAME

whether an easement holder's use of an easement contravenes the express terms of the easement grant requires us to construe the document that grants the easement, often, a deed. Id. at 342-43; Reise, 76 Wis. at 637.

¶ 20. The "first step in construction of a deed is to examine what is written within the four corners of the deed, for this is the primary source of the intent of the parties." Rikkers v. Ryan, 76 Wis.2d 185, 188, 251 N.W.2d 25 (1977). If the language within the four corners of the deed is unambiguous, the court will not look further. Id. However, if the language granting the easement is ambiguous, meaning the deed is susceptible to more than one reasonable interpretation in regard to the grant of easement, the court may resort to extrinsic evidence in an effort to determine the intent of the parties. Gilbert v. Geiger, 2008 WI App 29, ¶ 10, 307 Wis.2d 463, 747 N.W.2d 188.

¶ 21. In addition to the above-stated principles of law, the Club and Scheife contend that to determine whether certain conduct violates the express terms of an easement, under Milieu we are required to analyze the added burden, if any, imposed on the servient estate. The Club and Scheife misperceive the import of Millen.

¶ 22. In Millen, the Millens purchased a lakefront lot from Krumme, and granted Krumme a 12-foot wide easement "for ingress and egress from Beaver Lake Road to Beaver Lake," over the property. Millen, 201 Wis.2d at 680. The easement gave Krumme lake access from Krumme's remaining off-lake parcel. Id. "Thus, the Millens' lakefront lot became the servient estate and Krumme's off-lake lot became the dominant estate under the law of easements." Id. Krumme eventually "conveyed her remaining off-lake dominant estate to Thomas together with the easement." Id. at 681. Thomas owned two additional off-lake lots that surrounded the Krumme off-lake lot on the north, east and west sides. Id. at 680. "Thomas executed a quit-claim deed to herself by which she merged the legal description of the off-lake dominant estate parcel which she had purchased from Krumme with the surrounding off-lake" parcels she previously owned. Id. at 681.

¶ 23. The Millens' filed a declaratory action seeking to extinguish the easement, alleging that "Thomas's subsequent merger of the dominant estate with the surrounding land" she previously owned placed an additional burden on the servient estate that required termination of the easement. See id. at 683. As the court of appeals reasoned through the legal questions presented, the court explained that "an easement for a specified purpose may not be enlarged such that an added burden is placed upon the servient estate." Id. at 685 (citing S.S. Kresge Co., 260 Wis. at 376-77). The court then explained that the "mere fact that the owner of the dominant estate now owns other abutting lands" is insufficient to demonstrate an added burden on the servient estate sufficient to result in the termination of the easement. Id. The court concluded that the Millens failed to demonstrate that an additional burden was placed on the servient estate such that "continued use of the easement is precluded as a matter of law." Id. at 685, 683.

¶ 24. Milien established that extinguishing an easement is appropriate when the additional burden imposed on the servient estate is so violative of the terms of the express easement that "continued use of the easement is precluded as a matter of law." Id. at 683. Stated otherwise, Milieu is a remedies case. Millen asked the court to extinguish the easement so that no use could be made of it whatsoever. Milieu did not decide that an easement must be subject to an undue additional burden before a court can conclude that the terms of an express easement have been contravened.

¶ 25. Correctly understood, Milieu's, use of a burden analysis applies to those occasions when a servient estate owner seeks the remedy of extinguishment of an express easement. Milieu's burden analysis does not apply when the servient estate owner simply seeks a declaration that the terms of an express easement have been contravened. See id.; accord Gojmerac, 250 Wis.2d 1, ¶¶ 22-24, 47 (concluding that two parcels of land had the right to use the easement under the express terms of the easement grant "until such time as the Gojmeracs prove that the easement should be extinguished for a particular, recognized reason, such as that the use has increased the burden on the servient estate").

¶ 26. We further note that S.S. Kresge Co., cited by Millen for the proposition that the servient estate may not be subjected to an added burden, similarly does not lead to the conclusion that we analyze whether an added burden is imposed on the servient estate when the gravamen of the complaint is that the terms of an express easement have been contravened. This is so because S.S. Kresge Co. arose in the context of an easement that was obtained by prescription.

¶ 27. In S.S. Kresge Co., the easement was in an alleyway leading to a barbershop located on lot 2. S.S. Kresge Co., 260 Wis. at 376. The defendants then began to use lot 2, the dominant estate, as a retail outlet for appliances and as a storage warehouse for other merchandise that was to be sold elsewhere, which extended beyond lot 2. Id. The court concluded that this created "an added burden upon the servient estate." Id. at 377. In so concluding, the court explained that "[t]he owner of the servient estate is not required to wait until his property has been unreasonably burdened and thereby permit additional rights to be gained by prescription but he may proceed when any additional burden is placed upon his property." Id. (emphasis added).

¶ 28. In the context of a prescriptive easement, where the rights of the parties are not expressly set forth in a written document but rather are created through use, the assessment of whether an additional burden has been placed upon a prescriptive easement is appropriate due to the nature of a prescriptive easement. That is, the easement itself arises through use and an assessment of the burden that use has placed on the land of the servient estate over a period of time. See Ludke v. Egan, 87 Wis.2d 221, 230-31, 274 N.W.2d 641 (1979) (setting forth the elements of an easement by prescription). Because the scope of a prescriptive easement is constrained by the use that gave rise to the easement's creation, whether a prescriptive easement holder unreasonably placed an additional burden on the servient estate through use of the easement is relevant to determining whether the lawful scope of a prescriptive easement has been unlawfully extended. See S.S. Kresge Co., 260 Wis. at 376-77; Red Star Yeast Prods. Co. v. Merch. Corp., 4 Wis.2d 327, 339, 90 N.W.2d 777 (1958).

Our conclusion is supported by other prescriptive easement cases discussing whether the servient estate has been subjected to an added burden. See, e.g., Knuth v. Vogels, 265 Wis. 341, 345, 61 N.W.2d 301 (1953) (concluding that an easement by prescription for a driveway was not unlawfully extended by placing an increased burden on the servient estate when the easement holder replaced the original cinder driveway with a concrete driveway).
Similarly, assessing burden on the servient estate of an easement of necessity is proper. Easements of necessity do not contain express terms; rather, an easement of necessity may be granted when an easement "`is required for the complete and beneficial use of the land.'" Richards v. Land Star Grp., Inc., 224 Wis.2d 829, 839, 593 N.W.2d 103 (Ct. App. 1999) (quoting 25 Am. Jur. 2d Easements Licenses § 92, at 664 (1996)). Richards correctly noted that "the issue here is not whether a written easement grant includes utility installation," but in the absence of express terms, the issue is whether the utility easement was necessary and "whether utility installation would overburden the servient estate." Id. at 839, 842.

¶ 29. However, in the context of an express easement, the foundational principles that underlie the creation of the easement are much different from those principles that permit the creation of an easement by prescription. Moreover, requiring a showing of added burden in regard to proving that the terms of an express easement have been contravened encourages "difficult litigation over the question whether increased use unreasonably increases the burden on the servient estate." Restatement (Third) of Prop.: Servitudes § 4.11 cmt. b. Grygiel notes this concern and asserts that the necessary case-by-case determination of whether certain conduct imposed an additional burden on the servient estate in the context of express easements would eliminate "[t]he sanctity of the owner's private property, the workmanship of the written easement, and the certainty of prior rights."

¶ 30. We agree that when faced with an express easement, a court's focus should be on the language of the easement grant, and not on the presence or absence of added burden, in determining whether certain conduct contravenes the terms of the express easement. That analysis honors the expectations of the contracting parties and creates predictability in the respective parties' property rights. Parties who negotiate a deed granting an express easement expect courts to enforce its terms, which we conclude the law requires. See Rikkers, 76 Wis.2d at 188.

C. The 1973 Easement

¶ 31 As an initial matter, for the reasons we set out herein, we reject the Club's assertion that in order to prevail Grygiel must demonstrate that Scheife's conduct imposed an added burden on Grygiel's property. Millen's burden analysis is not applicable here. First, the Club has an express written easement granted by deed, not an easement by prescription, over Grygiel's property. Moreover, Grygiel does not seek to extinguish the Club's express easement as a matter of law; rather, Grygiel seeks a declaration that Scheife's conduct contravened the express terms of the easement and that by such conduct Scheife committed trespass. Because we are not confronted with a prescriptive easement and have not been called on to determine whether the Club's easement must be extinguished as a matter of law, we conclude that any added burden analysis is misplaced in this case. See supra ¶¶ 21-30.

¶ 32. Instead, we have been called on to determine whether Scheife contravened the Club's express easement by using the easement to access property other than the Club's property Case law directs us to resolve this issue by examining the language of the express easement. See Hunter, 78 Wis.2d at 342-43; Reise, 76 Wis. at 637. As such, our consideration focuses on "what is written within the four corners of the deed" creating the express easement. Rikkers, 76 Wis.2d at 188.

Both parties also argued about something referred to as a "home base" exception. It is unclear what exactly the home base exception is. Without so defining in its brief, Grygiel argued that "this Court should reject the Club's proffered `home base exception.'" However, the Club's brief stated that "the claimed `home base exception'. . . is a creation of Grygiel that misstates the position of the Club relative to this matter." Because neither party supports the adoption of such exception, we decline to address this argument.

¶ 33. We conclude that the easement is unambiguous and that Scheife's use of the easement to access the Unreins' 40 acres contravened the express terms of the easement. By using the easement to access the Unreins' 40 acres, Scheife and his invitees used the easement for the benefit of property other than the dominant estate and effectively enlarged the dominant estate to include the Unreins' 40 acres contrary to established easement law.

¶ 34. The Club has an easement over a 40-foot wide strip of Grygiel's land "for the purpose of ingress and egress as a means of access" to the Club's property. By its express terms, this easement unambiguously limits the Club's use of the easement such that it may be used only to access or to leave the Club's property. As such, use of the easement to access any other property is outside the grant of this easement.

¶ 35. Here, it is undisputed that Scheife along with his invitees used the easement as a means of access to the Unreins' 40 acres, not the Club's property. Indeed, this point was confirmed by Scheife's own testimony at the circuit court. He averred as follows: "On November 26th, 2006, 1 did drive myself and two other people over the easement to the Monches Fish Game Club for the express purposes of hunting the [Unreins'] 40 acres to the south. I have never denied that." As such, we conclude that Scheife's conduct contravened the express terms of the easement.

¶ 36. As stated, the deed in this case granted an easement appurtenant for a specifically stated purpose — a means of access to the Club's property. The Club's property, the estate that enjoys the privileges granted by the easement, is the dominant estate, and Grygiel's property, the estate that permits the exercise of those privileges, is the servient estate. See Gojmerac, 250 Wis.2d 1, ¶ 19. By using the easement to access the Unreins' 40 acres, Scheife and his invitees used the easement to benefit property other than the dominant estate, contrary to well-settled law that an express, appurtenant easement "exists for the benefit of the dominant estate alone." Id., ¶ 22.

¶ 37. Permitting the Club, its members and invitees to use the easement as Scheife did here would fly in the face of our previous statement in Sicchio, where we explained that "a right of way appurtenant to a particular lot cannot be used as a mode of access to another lot to which it is not appurtenant, even though there is no resulting additional burden." Sicchio, 10 Wis.2d at 537. Our discussion in Sicchio explicitly prohibits use of an express access easement to access any property other than the dominant estate. Sicchio further supports our conclusion above that Grygiel need not demonstrate that the use of the easement resulted in an additional burden to Grygiel's property in order to prevail.

¶ 38. Moreover, were we to permit the Club, its members and invitees to use the easement to access property other than the Club's property, we would be permitting the easement holder to "enlarge and extend the right over the servient estate to another lot." See Reise, 76 Wis. at 639. Enlarging the dominant estate to include the Unreins' 40 acres would contradict our past precedent. See Gojmerac, 250 Wis. 2d 1, ¶ 23 ("[T]he dominant estate cannot be enlarged.").

¶ 39. Because we have. concluded that Scheife's use of the easement to access property other than the Club's contravened the express terms of the Club's easement, we must now determine whether Scheife is liable to Grygiel for trespass as a result of that act.

D. General Principles of Trespass Law

¶ 40. When an easement holder contravenes the terms of an express easement, such contravention may result in a trespass on the servient estate owner's property. "`One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally [] enters land in the possession of the other, or causes a thing or a third person to do so. . . .'" Prahl v. Brosamle, 98 Wis.2d 130, 146, 295 N.W.2d 768 (Ct. App. 1980) (quoting Restatement (Second) of Torts § 158, at 277 (1965)); see also Manor Enters., Inc. v. Vivid, Inc., 228 Wis.2d 382, 389-90, 596 N.W.2d 828 (Ct. App. 1999) (applying Restatement (Second) of Torts § 158). The plaintiff has the burden to establish "intentional entry and a right to possession." Manor, 228 Wis.2d at 391 (citing Prahl, 98 Wis.2d at 146).

¶ 41. "[C]onsent to entry onto the land is a defense to an action for trespass. . . ." Id.; cf. Hofflander v. St. Catherine's Hosp., Inc., 2003 WI 77, ¶ 105, 262 Wis. 2d 539, 664 N.W.2d 545 ("Under Wisconsin law, a trespasser is `a person who enters or remains upon land in the possession of another without a privilege to do so created by the possessor's consent or otherwise.'" (quoting Antoniewicz v. Reszczynski, 70 Wis.2d 836, 843, 236 N.W.2d 1 (1975)). Consent may be given expressly or may be implied from the conduct of the plaintiff, from the relationship of the parties or from custom. Manor, 228 Wis.2d at 391 (citing Prahl, 98 Wis.2d at 147). "[I]t is the burden of a defendant asserting consent to plead and prove it." Id. at 392 (citing W Page Keeton et al., Prosser and Keaton on Torts § 18 n. 2, at 112 (5th ed. 1984); 75 Am. Jur. 2d § 216, at 164).

¶ 42. As stated, the holder of an express easement has consent to use the easement in accordance with the terms of the easement grant. Hunter, 78 Wis.2d at 343. Beyond this, the owner of the servient estate has the "right to exclude others from his or her land" to protect "his or her land from trespass." Jacque v. Steenberg Homes, Inc., 209 Wis.2d 605, 617-18, 563 N.W.2d 154 (1997) (discussing the damages that may be awarded for intentional trespass). It follows then that when an easement holder's use of an express easement contravenes its express terms, absent consent or some other circumstances permitting lawful entry on the grantor's property, the easement holder may be held liable for trespass.

¶ 43. The law of other jurisdictions supports this conclusion. In Davenport v. Lamson, 38 Mass. 72 (1838), the defendant acquired a right of way over plaintiffs property, which was appurtenant to his three-acre lot. The defendant subsequently acquired a nine-acre lot, which was "adjoining to and beyond the three acre lot." Id. at 73. The court concluded that the defendant's use of the easement as a means of going to and from his nine-acre lot violated the terms of the easement. Id. at 74. As such, "the entry was unlawful and constituted a trespass." Id. at 75; see also Tuthill Ranch, Inc. v. United States, 381 F.3d 1132, 1134 (Fed. Cir. 2004) ("[M]isuse of an easement may be a trespass to real property"); Diocese of Trenton v. Toman, 70 A. 606, 609 (N.J. Ch. 1908) (citing with support the holding in Davenport); Selvia v. Reitmeyer, 295 N.E.2d 869, 874 (Ind. Ct. App. 1973) (concluding that a right-of-way easement used by the easement holder to access "other premises to which the easement [was] not appurtenant" "constitute[d] a trespass"); Restatement (Third) of Prop.: Servitudes § 8.3 cmt. b, at 496 (2000) ("[U]nauthorized use of an easement is generally a trespass to the servient estate for which damages and injunctive relief are normally granted.").

¶ 44. We have determined that "nominal damages are always appropriate for a trespass." Jacobs v. Major, 139 Wis. 2d 492, 530, 407 N.W.2d 832 (1987) (citing Murphy v. City of Fond du Lac, 23 Wis. 365, 366, 23 N.W. 365 (1868)); see also Prahl, 98 Wis.2d at 152. However, if proved, compensatory damages may also be awarded. Jacobs, 139 Wis.2d at 530.

¶ 45. We conclude that Scheife is liable to Grygiel for trespass because he intentionally entered Grygiel's land without consent. Grygiel, as the landowner, has the right to possession of her land. Moreover, it is undisputed that Scheife intentionally entered Grygiel's property in order to reach the Unreins' 40 acres. Indeed, Scheife concedes this point. As such, Grygiel has met her burden of showing that Scheife intentionally entered land of which she had a right to possession. See Manor, 228 Wis.2d at 391.

¶ 46. Because Grygiel has met her burden, Scheife is liable for trespass unless he can show he had consent to enter Grygiel's land. See id. We conclude that Scheife failed to meet his burden. Scheife had consent to use the express easement in accordance with the terms of the easement grant. See Hunter, 78 Wis.2d at 343. Because, as we concluded above, Scheife's use of the easement contravened its express terms, the easement did not provide Scheife consent to enter Grygiel's property. Scheife has not pointed to anything in the record other than the express terms of the easement indicating that either he or his invitees had consent to enter Grygiel's property to access the Unreins' 40 acres. Moreover, in Scheife's answer to Grygiel's complaint, he admitted that he did not have consent to enter Grygiel's property. Accordingly, Scheife is liable for trespass.

¶ 47. Because nominal damages are appropriate for trespass, Jacobs, 139 Wis.2d at 530, and because Grygiel stipulated to limit her damages to "an award of nominal damages on the declaration of a trespass," we conclude that Grygiel is entitled to an award of nominal damages.

III. CONCLUSION

¶ 48. The issues in this case are whether Scheife's use of the easement to achieve access to property other than the Club's property contravened the express terms of the Club's easement and, if so, whether Scheife committed trespass on Grygiel's property by that act. We conclude that Scheife contravened the express terms of the Club's easement by entering Grygiel's property without consent and in doing so, he unlawfully trespassed on Grygiel's land. Accordingly, we reverse the decision of the court of appeals and remand to the circuit court for entry of judgment granting Grygiel a declaration of trespass and an award of nominal damages.

By the Court. — The decision of the court of appeals is reversed and the cause is remanded to the circuit court with directions.

Exhibit A